(2015) 389 KLR 800
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.D.RAJAN
SATURDAY, THE 20TH DAY OF DECEMBER 2014/29TH AGRAHAYANA, 1936
AS.No. 113 of 2000 (C)
(O.S.NO.1329 of 1995 of Addl.Sub Court, Thiruvananthapuram)
APPELLANT(S)/PLAINTIFFS
K.K.MOHANDAS AND ANR.
BY ADV. SRI.P.GOPALAKRISHNAN NAIR
RESPONDENT/DEFENDANT
THANKAMMA PILLAI
R,R1 BY ADV. SRI.M.RAJAGOPALAN NAIR
JUDGMENT
P.D.RAJAN,J
Appellants are plaintiffs in O.S.No.1329 of 1995 of the Second Additional Sub Court, Thiruvananthapuram and the defendant in the above suit is the respondent herein. Appellants also filed O.S.No.307 of 1995 in the same Court and both cases were tried together and disposed of by a common judgment on 30.6.1998. O.S.No.1329 of 1995 was filed by the appellants for specific performance of a contract.
2. The case of the appellants in the trial court was that they entered into an agreement on 18.1.1995 for sale of the plaint schedule property at the rate of Rs.3000/- per cent and a sum of Rs.25,000/- was paid to the respondent as advance and agreed to execute the sale deed within six months from the date of agreement. While, on 27.2.1995, the first appellant approached the respondent to put up a compound wall before executing the sale deed, he noticed that defendant had cut and removed a mango tree from the said property subsequent to the agreement, therefore O.S.No.307 of 1995 was filed against the respondent. When appellants demanded to execute the sale deed, after accepting the remaining consideration, the respondent refused to execute the sale deed. Hence the suit.
3. The respondent denied the allegation and contended that she never executed any agreement to sell the plaint schedule property to the appellants. As per the title deed No.2893/1960, she obtained title to an extent of 45 cents of property in survey No.904/7-21 of Peroorkada Village, which was fertile, grown with high yielding trees and valuable timbers. The respondent and her family are living in a house situated in the said property. At the time of the marriage of her second daughter, she gave possession of 25 cents on the western side of the property to her daughter after executing a document. During the year 1995, the market value per cent was Rs.10,000/-, excluding the building cost of Rs.2,00,000/-. When there was financial difficulty, the respondent borrowed money from the first appellant and pledged her property with the bank. When recovery steps were taken against the respondent, again she borrowed Rs.20,000/- from the first appellant, for which the first appellant demanded signed blank stamp paper. Accordingly, the respondent, her husband and younger daughter were forced to give signed blank stamp papers as security for the money borrowed. The respondent denied all the other allegations. According to the respondent, the appellants never expressed their willingness or readiness to purchase the property and as the respondent and her children are house maids of the appellants, they would be put to peril, if the property is sold.
4. The parties tendered evidence in the lower court which consist of the oral testimony of PW1 to PW3 and DW1 and their documentary evidence were marked as Exts.A1 to A5 and B1 to B9. After sifting and weighing the evidence on record, trial court dismissed both the suits without costs.
5. The learned counsel appearing for the appellants contended that Ext.A1 agreement is a valid document, which is sufficient for granting specific performance of contract. There was no reason for discarding the evidence of PW2 and PW3 which caused material prejudice to the appellants. PW1, her husband and her daughter were present at the time of execution of Ext.A1. There is no reason to doubt the credibility of Ext.A1. The learned counsel appearing for the respondent contended that there was no evidence to prove Ext.A1 since the respondent was his maid servant, who obtained Ext.A1 fraudulently by misunderstanding the position at the time of borrowal of certain amounts and there is no reason to interfere with the finding recorded by the trial court.
6. The jurisdiction to grant a decree for specific performance of a contract is a discretionary remedy and the court is not bound to grant such relief merely because it is lawful to do so, even though the discretion is not arbitrary but should be sound and guided by judicial principle. When the terms of the contract or the conduct of the parties entering into contract or any circumstance under which the contract is entered into, a position that, such contract gives the plaintiff an unfair advantage over the right of the defendant, the court can exercise its discretion not to grant specific performance of the contract, even if it is lawful.
7. In the light of the principle embodied under
Section 20 of the Specific Relief Act
we have considered whether the agreement was executed unilaterally by the plaintiffs or there is any agreement between the plaintiffs and defendant. For this, we have considered the oral testimony of witnesses. PW1 admitted that the second plaintiff is his wife, the agreement was executed on 18.1.1995 in a Document Writer's office at Muttada and a sum of Rs.25,000/- was given at the time of executing Ext.A1, where the defendant was present. The husband and younger daughter of the defendant signed in Ext.A1. He admitted that plaint A schedule property had some liability in the Land Mortgage Bank. Subsequently, the defendant assured that she will clear off the liability very soon. When the defendant tried to cut and remove a mango tree, after execution of Ext.A1 agreement, the appellants preferred O.S.307 of 1995 against such waste in that property. PW1 categorically admitted that he was always ready and willing to purchase the property. Ext.A2 is the Encumbrance Certificate in which no liability was recorded from Sub Registrar's office. Ext.A3 is the lawyer notice, Ext.A4 is the acknowledgment card and Ext.A5 is the reply. PW1 deposed that he is working in the Local Fund Audit Department and his wife is working in Government Secretariat as Section Officer. He admitted that several cheque cases were pending before Chief Judicial Magistrate Court, Thiruvananthapuram during that period and he was the complainant in those cases. He admitted that there is a residential building in the property, but the value of the building was not mentioned in Ext.A1. From the evidence, it is clear that he did not verify the exact liability in the property and the value of the building at the time of executing the agreement. The puramboke land included in the plaint schedule property was also not mentioned in the agreement. It is seen that Ext.A1 agreement was executed without proper verification of liability and enquiry, which affects the credibility of Ext.A1 agreement. Moreover, the second appellant was also not present at the time of execution of the agreement.
8. The specific performance of the contract has been refused by the defendant on the ground that the contract was obtained by unfair means, which is clear from the evidence of DW1. From her evidence, it is found that she purchased the property in the year 1960 and in the year 1992, she gave an extent of 25 cents to her younger daughter, Vasanthakumari by Ext.B2 and gave 20 cents to her elder daughter, Jayakumari where she constructed a house in it. In the year 1994, she borrowed a sum of Rs.20,000/- from PW1 and she paid interest for two months. Again in the year 1995, she borrowed another Rs.10,000/- for which she has not paid any interest. Her husband fell ill and later became blind and the amount was utilized for his treatment. She had taken a loan earlier from Land Mortgage Bank, when she received notice from the Bank, she borrowed the amount from the plaintiff for the second time. At that time, she signed certain papers, but she never executed Ext.A1 agreement for sale of property with PW1. Her documents were marked as Exts.B1 to B5. Now, she is working as a house maid. PW2 is her distant relative living in enmity with her and she never talked with him about sale of the property.
9. A contract can be considered in the context when it was entered into between parties and if the facts discloses that it is difficult to enforce it in the light of some other events, then it is difficult to perform such contract. A close scrutiny of the evidence of DW1, it is seen that the contract itself is not fair and it is one-sided. The court will not enforce specific performance of such contract if it imposes great hardship either on the side of the parties to it or if it is obtained from some other means. From the evidence of DW1, it is clear that there is a great difference between inadequacy of consideration coupled with suppression of facts. She admitted that the property was given to her daughters as per Ext.B2 will. If that be the position, the story put forward by the defendant is more probable and there is good ground for refusing specific performance. Therefore, we can say that a specific performance may be refused where there is inadequacy of consideration coupled with some other factors which are not amounting to fraud or mistake or some undue advantage taken by the appellants of their knowledge about low bargaining position or ill health of the defendant's husband or her family, even though such circumstance do not justify the non performance of the contract. Trial court considered the contention advanced by the appellant and dismissed the suit without granting any reliefs.
10. Learned counsel appearing for the appellants submitted that first appellant is entitled to get the advance amount and he relied on the decision reported in
Lalithambika V. Varghese (2004(3) KLT 892)
The petitioners/appellants filed I.A.No.2590 of 2014 with an alternative prayer to amend the plaint in O.S.No.1329/1995 by incorporating the prayer to direct the respondent/defendant to refund the advance amount paid by the plaintiffs/appellants with interest, which can be allowed at any state even in this appeal also. The learned counsel for the appellants contended that since alternative relief has not been sought for in the plaint, appellants will not be in a position to claim refund of the advance amount and for compensation. If the advance amount is not refunded, it will bring hardships and miseries to the appellants and will cause unjust enrichment to the respondent. In the light of the above argument, in the interest of justice, amendment was allowed at this appellate stage. It is true that specific performance was refused by the trial court on the ground that the respondent was indebted to the appellant, which was found inequitable. Apex Court in various decisions held that it is necessary to refuse specific performance of a contract if it was found just and reasonable, but in such cases, the appellant is entitled to get advance amount with interest.
11. In
Tejram V. Patirambhau (AIR 1997 SC 2702)
it was held as follows:-
" If it is true sale transaction and the respondent being a businessman and having purported to have paid Rs.48,000/-, one would expect that he would seek possession or he would pay the balance consideration and request for execution of the sale deed. Instead, he kept quite for full 3 years, be that as it may, it would appear that there was money transaction between the appellant and the respondent and the respondent, being money-lender, was taking documents, purporting to be an agreement of sale, from the loanees. In the vent of the loanees failure to pay the loan amount along with interest stipulated by him, the documents would, obviously, be executed, with a view to enforce the repayment of loan and interest accrued thereon. It is unlikely that being a money-lender and having parted with Rs.48,000/- as cash, he would have kept quite either for seeking possession of the property or payment of Rs.2,000/- immediately and then sought specific performance; it would be unlikely in the normal circumstances that he would have waited for 3 years for issuing notice and then filing suit on the last date. Under these circumstances, the Courts below rightly came to the conclusion that it is not an agreement for sale or purports to be a sale in truth and in reality, but in view of the admission made by the respondent by way of endorsement that he had received Rs.48,000/- and in the absence of any specific circumstances and in view of the doubtful conduct of both the parties, it is not possible for us to reach any satisfactory conclusion on the basis of evidence as to what was the amount actually due and paid by the appellant to the respondent and what amount is still payable. Under these circumstances, we are of the considered view that the ends of justice would be met if the conclusion reached by the High Court that a sum of Rs.48,000/- was paid by the respondent to the appellant, is confirmed. However, respondent is not entitled to payment of any interest or cost, as ordered by the High Court. Under these circumstances, the order of the Division Bench of the High Court for payment of Rs.65,280/- is set aside. Instead, there will be a decree for a sum of Rs.48,000/- in lump-sum without any interest. The appeal is accordingly, allowed with the above modification. No costs".
12. The respondent admitted that she received the amount as loan from the first appellant; when she admits that Ext.A1 agreement was executed at the time of receiving money from the first appellant, in the light of the alternative claim, appellants are entitled to get the advance amount in the interest of justice. Therefore, we are of the view that if the respondent repays the amount of Rs.25,000/- to the first appellant instead of granting specific performance of executing the sale deed, it will redress the grievance in the interest of justice.
In the result, the specific performance of the contract denied by the trial court is upheld and this appeal is partly allowed. A decree is granted in favour of the appellants for realising a sum of Rs.25,000/- with 6% interest from the date of the decree till realisation. There will be no order as to cost.
K.T.SANKARAN, JUDGE
P.D.RAJAN, JUDGE
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